Fair Use - Fair Use As A Defense

Fair Use As A Defense

The Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc. This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that the use was fair and not an infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount, for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense.

Since the defendant has the burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. This type of lawsuit is part of a much larger problem in First Amendment law. (See Strategic lawsuit against public participation).

Since paying a royalty fee may be much less expensive than having a potential copyright suit threaten the publication of a completed work in which a publisher has invested significant resources, many authors may seek a license even for uses that copyright law ostensibly permits without liability.

The frequent argument over whether fair use is a "right" or a "defense" is generated by confusion over the use of the term "affirmative defense." "Affirmative defense" is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between "rights" and "defenses", and so it does not characterize the substance of the defendant's actions as "not a right but a defense".

In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in the 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation ("EFF"), the American Civil Liberties Union, the National Coalition Against Censorship, the American Library Association, numerous clinical programs at law schools, and others. The "Chilling Effects" archive was established in 2002 as a coalition of several law school clinics and the EFF to document the use of cease and desist letters. Most recently, in 2006, Stanford University began an initiative called "The Fair Use Project" (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations.

In 2009, fair use appeared as a defense in lawsuits against filesharing. Charles Nesson argued that file-sharing qualifies as fair use in his defense of alleged filesharer Joel Tenenbaum. Kiwi Camara, defending alleged filesharer Jammie Thomas, announced a similar defense.

On September 2, 2009 Israeli District court ruled out a detailed decision not allowing disclosure of "John Doe"'s details for the request of the FA Premier League based on several reasons, but the most interesting were that "fair use" under the new Israeli law of 2007 (which is based on the US 4 factors test) is a right and not merely a defense. The court specifically states that the public may have base for a legal cause of action if its fair use right is infringed by the copyright holder. Other important decision in said judgment is the fact that the court finds streaming Internet filesharing site of live soccer games not infringing copyright as this use is fair use (mainly due to the importance of certain sport events and the public's right). The court analyzes the 4 factors and decides that due to such importance of sporting games (and other less important factors), such use is fair.